Relocating from New York with Marital Children After A Divorce

I love New York and I certainly don’t want to move elsewhere but I understand why someone else might.  After a divorce, one parent may wish to relocate either to pursue a new relationship or to be closer to family.  If there is no visitation granted to the other parent, the custodial parent can move freely.  However, in most cases visitation is granted to the non-custodial parent and relocation becomes an issue.

Most judgments of divorce or awards of custody provide a relocation clause setting forth the parameters for parental relocation.  To relocate beyond what is set forth in the documentation, a custodial parent needs written permission from the non-custodial parent, or must file a Petition for Relocation and obtain an order from the court.  Even when a final judgment of divorce or custody is silent on the issue of relocation, a custodial parent should not just go ahead and relocate with the child.  An order should still be obtained to avoid the non-custodial parent’s challenge to the move.  Further, moving without regard for the non-custodial parent’s visitation rights will not bode well for the custodial parent in court.  The non-custodial parent may even move for a change of custody if the custodial parent shows such a blatant disregard for his/her visitation rights.

In determining whether a parent with custody of a minor child can relocate, the court uses a best interest of the child analysis, considering the following factors:

1)    The good faith of the parents in requesting or opposing the move;

2)    The child’s respective attachments to the custodial and non-custodial parents;

3)    The possibility of devising a visitation schedule that will enable the non-custodial parent to maintain a meaningful relationship with the child;

4)    The impact of the move would have on the quality of the life of the child;

5)    Any negative impact from hostility between the parents;

6)    The effect on extended family relationships; and

7)    Any other factors the court may consider.

The following two cases illustrate how a court may evaluate the best interest of the child in relocation cases.  The burden is on the relocating parent to prove by a preponderance of the evidence why relocation is in the best interest of the child.  In Tropea v. Tropea, 87 N.Y.2d 727 (1996), New York’s highest court found that a proposed relocation was in the best interest of the child where the mother demonstrated that relocation would provide her son with a better financial lifestyle and a more stable home environment.  Further, the move was close enough that the non-custodial father would still have meaningful access to visitation with his child.  However, in Yelverton v. Stokes, 247 A.D.2d 719 (1998), the father moved for a change of custody, which was granted, after the mother failed to show that the move was in the best interest of her son.  Rather, it was in the best interest of herself and her personal interest in pursuing a California lifestyle with her new husband who lived out there.

A custodial parent wishing to relocate with his or her child should be prepared to show the court why the move is beneficial to the child, considering the 7 factors listed above.  Any attempt by the petitioner-parent to encourage a relationship between the child and non-custodial parent (i.e. setting up a visitation schedule) post-relocation would strengthen his or her petition to relocate.  The relocation should not focus on the parent’s own personal interest in relocating or his or her lifestyle preferences.